Com. v. Gilbert
| Decision Date | 03 May 1956 |
| Parties | COMMONWEALTH v. Margaret GILBERT (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ephraim Martin, Asst. Dist. Atty., Cambridge, for the Commonwealth.
Stuart C. Rand and Walter N. Kernan, Boston, for defendant.
Edward J. Barshak, Boston, by leave of court, submitted a brief as amicus curiae.
Before QUA, C. J., and RONAN, WILKINS and COUNIHAN, JJ.
Decision in these cases and in the case of Commonwealth v. Hood, Mass., 134 N.E.2d 12, has been withheld until now because of the pendency before the Supreme Court of the United States of the case of Commonwealth of Pennsylvania v. Nelson and our expectation that the decision in that case would throw light upon the action we should take in our Gilbert and Hood cases. That expectation has, we think, now been realized by the ruling of the Supreme Court in Commonwealth of Pennsylvania v. Nelson, 76 S.Ct. 477.
Both of the indictments now before us were returned by the grand jury in September, 1951. They are similar in form except as presently to be indicated. They charge the defendant and another person who, so far as appears, has not yet been brought before the court and whose name is not disclosed by the record with conspiring with two other named persons 'to advocate, advise, counsel and incite the overthrow by force and violence of the government of * * * [first indictment, the Commonwealth of Massachusetts; second indictment, the United States of America] by speech, exhibition, distribution and promulgation of certain written and printed documents, papers and pictorial representations.' Both indictments seem to have been framed to charge conspiracy to violate G.L. (Ter.Ed.) c. 264, § 11, as appearing in St.1948, c. 160, § 1, 1 which defines crimes substantially in the terms of these indictments. If, however, as has been suggested in argument these indictments should be regarded as indictments for conspiracy to commit common-law offences, the result of the cases would be the same, and we therefore forbear discussion as to whether there is still a common-law crime of sedition of the type charged.
Both cases are reported to us by a judge of the Superior Court before trial and without any rulings by him on the questions of law involved. G.L.(Ter.Ed.) c. 278, § 30A, inserted by St.1954, c. 528.
We deal first with the indictment charging a conspiracy directed against this Commonwealth. In Commonwealth of Pennsylvania v. Nelson, 76 S.Ct. 477, the defendant had been convicted under the Pennsylvania statute only with respect to sedition against the United States and not with respect to sedition against the State. Commonwealth v. Nelson, 377 Pa. 58, 104 A.2d 133. The Pennsylvania statute, like our own, attempted to deal with sedition directed against the nation as well as with sedition directed against the State. The Supreme Court of the United States at the outset of its opinion stated in effect that all that was before it for review was the precise holding of the Supreme Court of Pennsylvania. The reasoning of the opinion, however, seems to us to carry implication beyond the case of a State prosecuting for sedition against the United States and in substance to decide that the Smith Act, now 18 U.S.C. § 2385, taken in connection with the general criminal conspiracy provisions of 18 U.S.C. § 371, the Internal Security Act of 1950, 50 U.S.C.A. § 781 et seq., and the Communist Control Act of 1954, 68 U.S.Sts. at Large, 775, 50 U.S.C.A. § 841 et seq., indicates an intent on the part of Congress to occupy exclusively the field of sedition at least where the offence charged is a Federal crime of the type of that charged in that case, even though alleged as a conspiracy against the State. It would serve no purpose to recite the reasoning of the Supreme Court here further than to remark that it rests upon three principal grounds , (1) that "(t)he scheme of federal regulation (is) so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it", (2) that "the federal interest is so dominant that the federal system (must) be assumed to preclude enforcement of state laws on the same subject", and (3) that enforcement of the State sedition acts 'presents a serious danger of conflict with the administration of the federal program.'
Apparently the Supreme Court found all three grounds present in the Pennsylvania case. We think that court would find the same three grounds present in the first of the cases now before us, whether the indictment is laid upon that part of G.L. (Ter.Ed.) c. 264, § 11, relating to the overthrow of government by force and violence or upon some principle of the common law proscribing the same conduct. The...
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